u.s. DEPARTMENT Of TRANSPORTATIR E c E I v ED 

Office of Hearings 

Washington, D. C. FEB 2 5 2014 

HEARING DOCKET --------------------------------~~~ 

The liberty Foundation, Inc. 

FAA DOCKET NO. 2012-0477 

(EIR 2011-GL-03-0070) 

(Civil Penalty Action) 

Hon. J. E. Sullivan, Administrative Law Judge 

RESPONSE TO FAA'S MOTION TO EXCLUDE 

Respondent, The Liberty Foundation, Inc. (Liberty), herewith responds to FAA's 

Motion To Exclude certain testimony. As we show below, FAA's Motion is not well 

taken and should be denied in its entirety. 

As To Raymond Fowler: 

FAA's motion suggests it is somehow unfairly surprised or disadvantaged by the 

comment in Liberty's Motion To Continue (based on Mr. Fowler's upcoming deployment 

to Afghanistan) that Mr. Fowler may be called upon to testify in response to inaccurate 

B-17 testimony by FAA witnesses. As Liberty has noted a number of times in its various 

filings it is, by virtue of its status as Respondent, necessarily in a reactive position. Its 

trial testimony will, to some degree, depend on the testimony and evidence presented 

by FAA in its direct case. Liberty properly and timely responded to FAA's Motion For 

Summary Judgment including, inter alia, Mr. Fowler's Declaration. 
Liberty never had an intention to call Mr. Fowler as an expert witness in its "direct 

case," but given the inaccurate testimony of some of FAA's so-called experts as 

disclosed in FAA's Motion For Summary Judgment, Liberty determined it may need Mr. 

Fowler's testimony on B-17 technical issues. 1 

As To Mr. Underwood: 

Mr. Underwood was properly and timely disclosed as a potential witness and his 

potential testimony was described on October 14, 2013, in response to FAA's limited 

interrogatories that he would "describe the process of replacing the tanks and the work 

performed/materials utilized in the process as well as his observations of the work 

performed on the #1 tank in June, 2011." (Exhibit A hereto). Liberty noted Mr. 

Underwood's testimony might be expanded and FAA had two months after this 

disclosure to take Mr. Underwood's deposition and chose not to do so. It is specious for 

FAA to claim it is somehow surprised by Mr. Underwood's Declaration attached to 

Liberty's Response To FAA's Motion For Summary Judgment. Moreover, FAA deposed 

Mr. Schneider, Mr. Fowler, Mr. Norville, and Mr. DeJoseph on April 30 - May 1, 2013, 

during which Mr. Underwood's name was prominently mentioned by Mr. Schneider and 

Mr. Fowler as someone who had a substantial role in the project to change the fuel 

tanks from bladder to aluminum and who was also present during the repair to the #1 

fuel tank in June, 2011. Notwithstanding this information, FAA declined to depose Mr. 

1 The parties have agreed that Mr. Fowler's testimony preservation deposition will be on March 3, 2014. 

Liberty would have no objection to FAA examining Mr. Fowler at that time on the contents of his 

Declaration. Thus, it is difficult to imagine how FAA can be prejudiced. 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite380, Miami,FL 33156 2 

T: (305) 670--1222 F: (305) 400-0685 EMAIL: §Jj_!f\FIJflOLDSTElNPA.®ATT.NET 
Underwood or request an enlargement of time to do so. FAA cannot now complain it is 

disadvantaged by what may be convincing testimony from Mr. Underwood. 

As to Mr. Schneider: 

FAA's arguments regarding Mr. Schneider are the most troubling. FAA began 

investigating Mr. Schneider almost three years ago in mid-June, 2011, as a result of the 

unfortunate accident on June 13, 2011. FAA revoked Mr. Schneider's mechanic 

certificate on an emergency basis on August 22, 2011, in a nine page, three Count, 24 

paragraph Emergency Order of Revocation. Interrogatories, requests for production, 

and requests for admissions were accomplished in that case and, as noted, Mr. 

Schneider was deposed in the instant case. For the FAA to suggest it is surprised by 

Mr. Schneider's denial of its assertions is fanciful. 2 

If FAA is claiming the Fowler, Underwood, and Schneider Declarations should be 

excluded in their entirety, any such claim is misplaced and inappropriate. Liberty had 

every right under the Agency's Rules and the Federal Rules of Civil Procedure to attach 

Declarations to its Response to FAA's Motion For Summary Judgment that raise 

genuine disputes of material facts. That is the purpose of a response to a motion for 

summary judgment. Each of these Declarants was previously identified as a potential 

witness and FAA deposed them (except for Mr. Underwood whom it chose not to 

depose). There is nothing improper in any of the Declarations attached to its Response 

To FAA's Motion For Summary Judgment. All of the content of the Declarations is fact 

2 By making these comments, Liberty does not waive its objection to FAA's claim that the assertions in 

the Schneider Complaint are established. Liberty continues to maintain the settlement in that case is 

inadmissible in the instant case for that purpose. 

STUART A, GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 3 T: (305) 670-1222 F: (305) 400-0685 EMAIL: _§_TUA_fiT\ill.Ul$If:JNP_A_!~"6_TT.['l_!;I_ 
based on !irl?tb<l_IJQ knowledge of the Declarants, unlike that of FAA's affidavits. Indeed 

the quoted excerpts on pages 3-4 of FAA's Motion are fact-based assertions, not 

opinions of law. FAA does not and cannot show it was misled or prejudiced by any of 

the Declarations. 

The Referenced Pre-Hearing Date Was Canceled: 

The following chronology is pertinent: 

-+By Order of September 24, 2012, the Court Set Litigation Dates And Procedures 

and established January 31, 2013, as the deadline for both parties to finish taking 

supplemental depositions and responding to and serving answers to all supplemental 

discovery requests. 

-+By Order dated January 22, 2013, the Court granted Liberty's Motion To Extend 

Expert Witness Information, etc., and established February 28, 2013, as the new 

general discovery exchange deadline; April 30, 2013, as the new deadline for taking 

depositions and to respond to any/all discovery requests and to finish taking expert 

depositions; and June 28, 2013, as the new deadline for the parties to finish taking 

supplemental depositions and responding to and serving answers to all supplemental 

discovery requests. 

-+On July 31, 2013, FAA served its extensive Amendment To Complaint. 

-+On August 6, 2013, Liberty filed its Motion To Stay Or Revise Scheduling Order, 

etc., by reason of the extensive Amendment To Complaint. 

+On August 27, 2013, following a telephone conference hearing, the Court 

granted Liberty's Motion in part and issued its Order Cancelling November 2013 

STUART A GOLDSTEIN, P. A. 

7300 North Kendall Drive. Suite 380, Miami,FL 33156 4 T: (305) 670-1222 F: [305) 400-0685 EMAIL: .$.H!.6BIQ9J,J)8Tf[T:-JJ:'A@_6_II:c_~_J;.I 
Hearing And Granting/Denying Other Relief. The previous deadlines were canceled 

(paragraph 2) and re-set making December 20, 2013, the deadline to complete 

additional limited discovery (paragraph 5) and setting January 31, 2014, as the deadline 

for Liberty to respond to FAA's Motion For Summary Judgment. 

Therefore, because of the Amendment To Complaint and the discovery that 

followed, the February 28, 2013, deadline was canceled or, at the very least, it was no 

longer a "pending" deadline. The February 28, 2013, deadline was never re-set. It 

makes no sense for FAA to argue the February 28, 2013, date remained active when 

the Court was allowing discovery to continue for almost ten more months, until 

December 20, 2013. In addition, the case was not even at issue on February 28, 2013, 

because of the Amendment To Complaint, to which Liberty filed its Answer on August 

23,2013. 

No Prejudice To FAA: 

liberty has not asked a single question in trial of any of these potential witnesses. 

If and when one of these witnesses testifies improperly at trial, FAA can make an 

objection. FAA claims in the penultimate sentence of its Motion on page 5 that by 

Liberty's failure to disclose "any expert or opinion testimony by Fowler, Underwood, or 

Schneider, Respondent has denied the FAA any ability to depose these individuals, or 

otherwise conduct discovery, concerning their opinions." This is demonstrably wrong. 

As noted above and as shown in Exhibit A hereto, the description of Mr. Underwood's 

testimony clearly shows the areas in which he would testify. As to Mr. Schneider, he 

testified in his deposition regarding B-17 handbook references that permitted Liberty to 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite380, Miami,FL 33156 5 

T: (305) 670-1222 F: (305} 400-0685 EMAIL: STUARTGOLDSTEINPA@ATT.NET 
perform the maintenance at issue. See, Exhibit B hereto, pages 35-38 of Mr. 

Schneider's deposition which references Advisory Circular 43.13, Section 8-32. FAA 

counsel specifically asked Mr. Schneider for his opinions. One example follows, and 

there are others in Exhibit B. 

Q: "Do you believe that the work that was done on the fuel tanks for this 

aircraft was in compliance with Part 43?" 

A: "Which work specifically? Are you referring to the welding?" 

Q: "The entire process." 

A: "Yes.~~ 

FAA had every opportunity to question Mr. Schneider about his conclusions and 

opinions and did so to the extent it desired. 

Regarding Mr. Fowler, we have previously discussed these issues as they relate to 

him and need not repeat them here. 

FAA Brings This Motion With Unclean Hands: 

Liberty took FAA "expert" Don Dodge's deposition on May 1, 2013, and asked this 

specific question at page 14 (Exhibit C hereto): 

Q: "What is your understanding of the subject matter that your are going to 

testify about in this case if you are called as a witness?" 

A: "The determination of whether or not a major or minor alteration or repair 

was made on the fuel tanks." 

Yet in his Affidavit in support of FAA's Motion For Summary Judgment, Mr. Dodge went 

far beyond an opinion of major/minor alteration/repair. By way of examples, see 

paragraphs 25, 27, 28, 29, 30, 32, 33, 34, and 35 of Mr. Dodge's Affidavit (Exhibit D 

STUART A. GOLDSTEIN, P. A 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 6 T: (305) 670-1222 F: (305) 400-0685 EMA!L: $J_I,J£'J3IQ9l-J).£fEINJ:6.@_l.fl.NET 
hereto) in which he expresses his opinion on other subjects including the airworthiness 

of the aircraft after the February, 2011 maintenance, the airworthiness of the aircraft 

after the June, 2011, maintenance and that welding was improperly performed. 

Finally, although Liberty views FAA's instant Motion as not well taken, Liberty is 

prepared to make Mr. Underwood and Mr. Schneider available to FAA for deposition on 

any conclusions or opinions they may have set out in their Declarations. The trial in this 

matter is more than two months hence, so there is ample time for FAA to conduct said 

depositions if it desires to do so. 

Respectfully submitted, 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 400-0685 

Email: stuartgoldsteii:JQ_a @_e~tt.IJ~t 

By:4M,JAJ'L-f'~~~q_::::~----­

Stuart A. Goldstein 

Attorney for Respondent 

STUART A GOLDSTEIN, p_ A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305) 670-1222 F: (305) 400-0685 EMAIL: ~Ili_E<,!}IQ.Q!.,_DSTEINPA0£8TT.Nt;I 

7 
C!::fiTlfiCATE Qf~ERVICE 

February, 2014, as set forth below: 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel 

Federal Aviation Administration 

0. Box20636 

Atlanta, GA 30320 

By Facsimile (404) 305-5223 

and regular U. S. Mail 

and that an original and one copy was served upon: 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1 000 

Federal Aviation Administration 

800 Independence Avenue, S. W. 

Washington, D. C. 20591 

and that a copy was served upon: 

Honorable J. E. Sullivan 

Office of Hearings, M-20 

S. Department of Transportation 

1200 New Jersey Avenue, S. E. (E 11-31 O) 

Washington, D. C. 20590 

By Facsimile: (202) 366-7536 

and regular U. S. Mail 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: {305) 670·1222 F: (305) 400-0685 EMAIL: §J_IJ_{\_B_l_QQ!o.J)_§J£\~li:~H:Y.b_TT.NET 

8 
•. L 

airworthy work performed, 

Sehnsld!f!r was done in a manner which would 

have Administrator as described in Mr. Schneider's deposition 

conversations Inspectors Miller David Alderman. In addition, 

"•""i"·"' was prepared by professional maintenance providers who 

""'"'""rwi.rm> return to sei'Vice. 

2. A maintenance entry was made in the aircraft's discrepancy leg book 

which was kept in the aircraft and wilich was destroyed in fire. This log entry 

cm1forrmr'rl to t11e o! 14 CFR ,IJ, copy of the discrepancy log form has 

been provided to response to Complainant's limirted 

Request For Production. 

methods, techniques, 

th~? Administrator. The 

had a 

rnanner ln whlch 

were not oi 
taken h"!nr"' 

these 

discovery would not be ne<~essaly 

R 

that the depositions ""'"~'"ih<:.rl 

9. 

performed and 

10. There is no Interrogatory 10 

rm~>in"' were 

w"'"'" knew whai 

amendments, additional 

on the grounds it is in 

amendments to complaint 

remain valid the 

·11. Respondent objects to Interrogatory as invasive of the work product 

privilege and has not made a determination, other than as 

previously as to which witnesses H will call and their expected testimony. 

Without waiving such objections, and withollt limiting !heir testimony in any way by thr;, 

following descriptions, Respondent states it INili likely call Rodney Schneider as a 

•.rvit'"''"'" to testily as to the log entry in the discrepancy log book as well 

E!S the work he and the matters discussed in ills deposition: 

Respondent 11, 1 (.John Hess and 

Bud Sittig), to txJOk prior to tile flight in 

11' 1; 
October, as set forth nRlnw 

Christopher R. Stevenson, Esq. 

011ice of tile Rogronal Counsel 

Federal Aviation Administration 

P 0. Box 20636 

Atlanta. 

By (404) 305-52:23 

and regular U. 

served on 14th day 

GOL.DSl'EIN P. A. 

Suite 380 
Rodney Sdmeider r II Re: Liberty Foundation April JO, 2013 

I ~IR. GOLDSTEIN: Chris, do you want to have I Q. fhis mnlntemtnct' entry references .\tlvisory 

2 the C<lUrt retxJrter put the same kind of stickers 2 Circular 4313, Section 8to 32. Did you review that 

3 just m lt Is clear it is from the deJX>sition? 3 ;uhisory c-ircular '" hile thi1 wurk wus being Uone? 

4 t Government Exhibit 7 was mnrkeJ for .j A. y <S. r read it. 

5 iJ.entiticathm.) 5 Q. Did you also look at the B-17 erection and 

6 Q. (By :\lr. Stevenson) ?<low, the Exhibit 7, 6 maintenance manual? 

7 what is E•hibit7? 7 A. Yes. 

8 A. lt appears to be a photocopy of portions 8 Q. What is the 3-17 maintenance and erection 

9 of a logbook. 9 manual? 

10 Q. And iiyou want to tum to tile fourth page 10 A. It is one of the maintenance manuals for 

II of that, there is a February 14, ZOII, entry. What is II the airplane. 

12 this entry? 12 Q. '\\'hen you say it is one of the maintenance 

IJ A. This is the entry for the fuel tank work. 1J manualt for the airplane, what are the other 

14 Q. When this says full tanks are made of 14 maintenante manuals for the airplane? 

IS aluminum sheet, i 100-1/2 hard, what is that referrin~ 15 A. Field service manual, structural repair 

16 to? 16 manual. Those are the main ones for the airframe. 

17 A. That's the alloy of the aluminum they were 17 Q. Did any or those manuals des.:ribe the work 

18 manufactured from. 18 that you did or that was done with the welding on 

19 Q. Do you know what alloy was used for the 19 these tanks? 

20 new ple<es welded onto the tanks? 20 A. Not with the welding, no. 

21 A. No, I don't recall. 21 Q. A.re you aware of any maintenance manual of 

22 Q. At the lime you made thls entry, did you 22 any sort that describes how to do this? 

23 know what they were made out of? 2J A. No. 

24 A. I had known at one time when they were 24 Q. Are you aware of any instructions for 

2S doing the welding, but I couldn't tell you the 25 continued airworthiness that tell you how to do this 

Page 34 Page36 

I numbers. I welding job? 

2 Q. Do you know if it was the same as the 2 A. No. 

3 sbeU? 3 Q. Do you believe that the work that was don< 

4 A. I can't recall. 4 on the fuel tanks ror this aircraft was in compliant< 

5 Q. Did you have to make any adjustments to 5 with Pari43T 

6 the bose, various bose fittings ill order to book them 6 A. Which work specifically? Are you 

7 up to tho new welded-on fitlibgs? 7 referring to the welding? 

8 A. No, sir. 8 Q. The entire prooe.,, 

9 Q, Did you at aoy point in lime know wbaltbe 9 A. Yes. 

10 'COmposition of tbe new fittings that were welded ont 10 Q. Why do you think that? 

II tbe shell wen? II A. Again, from talking with the Daves and 

u A. 1 am sure it was mentioned, but I don't 12 also reading the sections. 

lJ recall it. IJ Q, What do you mean when you say the 

14 Q. Do you remember if it was the same kind of 

·~ sections? 

15 aluminum .at the original shell? 15 A. The sections l have referenced in the 

16 A. I can't recall. 16 signotT. 

17 Q. You mentioned talking about what sort of 17 Q. The advisory circular or maintenance 

18 papemork was required witb the Daves, correct? 18 manual? 

19 A. Yos. 19 A. Advisory ctrcular. 

20 Q. Did you lolk about the ua<t ianguagt thai 20 Q. What in the advisory circular led you to 

ll you were going to use in this entry? 21 believethi< was in accordan<e with Part 43? 

n A. Y~s. 2l A. I can't tell you specitlcally. 

2J Q, How much of this languajie Uid you talk 23 Can we take a quick break? 

24 about during tbat conference call? u !Recess from 10:08 a.m. to 10:10 a.m.) 

25 A. ~lost of it. 25 Q. (By Mr, Stevenson) At the time that you 

Page 35 

REGENCY-BRENTANO, INC. 

Ill (Pages 34 to 37) 
) 

Rodney Schneider [n Re: Liberty Foundation April .30, 2013 

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madll:' this maintenance entry, how did you know what 1 ,\. Cullen wou!J know. 

kind of alum inurn the shell was made nut or? 2 Q. :'<low, I would like to ask you about June ol 

A. We gor tknt from the Boeing prints. J ZtU L .\m I correct in saying that there was am 

Q. l:tm sorry, could you be more precise\\ hat 4 in<idenl in June of 2011 when one of these fuel tanlc 

you !ttean by Boeing prints? s started leaking? 

A. Engineering drawings. 6 A. Yes. 

Q. Where did you get those drawings? 7 Q. Can you teU me about that. 

A. I am not sure where they got them from. 8 A. Just from what I know. the airplane was in 

CuJien has a set ofB~ J 7 drawings, engineering prints. 9 Aurora for a tour weekend and I got a phone call from 

Q. So did you get them from \fr. t.Inderwood! 10 Cullen saying he had gotten a phone call we had a fuel 

A. r tlid not actually possess them. II leak on one of the tanks and we probably needed to go 

Q. Okay. 12 up and look at it to see what was going on. 

A. He and I talked about it in his otlice, IJ Q. Did you, in fact, go and look at it? 

went over the prints. He actually did most of the l.t A. Yes. we did. 

research on what the materials were and what would be 15 Q. Is Hwe11 you and )tr, Underwood? 

appropriate to weld them together with. 16 A. Yes. He and I flew up in his T-6. 

Q. So woutd it be fair to say it was 17 Q. And what did you obsene about tbe fuel 

:\r(r. (inderwood who decided what materials to use and 18 leak? 

what welding materials and aluminum to use? 19 A. When we got there, they had the lower 

A. Probably he and also possibly consulting 20 stress panel ofT the airplane so we could look at the 

with Cobb Fabricators to do the wel~ing. I am not 21 tank and we put a little bit of fuel in the tank to 

sure what the interaction was there. 22 see where it was coming out of, discovered a crack in 

Q. But you didn't make that determination. 23 the weld roughly 5 inches long, maybe 6. 

A. No. 24 Q. In which of the fuel tanks was this? 

Q. You said that there was a group of people 25 A. No. J, main. 

Page38 Page 40 

who pbysically removed the tanka !'rom tbe -- I Q. New, which tank il1 the No.1 tank, just to 

A. Yes, sir. 2 be clear? 

Q. Other than yourself, wbo wa• involved in 3 A. There are three tanks in the wing, in each 

that? ~ wing. No. I main tank is between No. 1 and 2 in the 

A. We have several volunteers that help us 5 cells.jus1 after the front spar. Behind it is No.2 

out. My father helped out. We have three other guys 6 feed tank. And inboard of No.2 is No.2 main tank. 

that volunteer through the organization that helped 7 Q. And is 1 and 2 the left wing or the rUght 

out with it. They help out with the maintenance on it 8 wing? 

in the wintertime. Do you \Yant their names? 9 A. I and 2 of the left wing. 

Q. Yes. 10 Q. ~ow, you said that there was a erack in 

A. My father is Richard Schneider. Jim II the ""'eld. What nactly do you mean by crack in the 

Lawrence is one. Keith Youngblood is one and Chris ll weld? I am sorry. \'+/hen )'OU say in the weld, is 

Whiting is another one. And Chuck Giese is another 1J that- olu1y, let's go back and look at one of these 

person who volunteers with the airplane. 14 pictures. \\'hen I look at- vt·hich- was it one of 

Q. How were tho shells transported to the 15 the slots? 

welding comp•ny? 16 A. It tHIS the end cap, the bottom edge of the 

A. I wusn1

t there when they were removed to 17 end cap. 

the we!Jing company. I think they tvent on a trailer. 18 Q. Okay. So "·hen you say the end cap, is 

Q. Did Mr. l'nderwood arrange for thai? 19 that the end thai was welded shut that comeli rrom the 

/\. He and KeHh got together and diu the 20 monuracturer welded shut by Boeing or is dun the ntw 

tnO\'ing. I am nGt sure \\ho Jid the movitlg, though. 2l Wt:![d? 

Q. Did the welding company charge for their 22 A. This would have been the new we! d. And 

work? 23 ~vhen you say -~ \"hen ll<lok at one of these welJings, 

A. r don't know. 24 I would see a~~ there is going to be two pieces of 

Q. Oo you know who would know that? 25 metal and then there is going to be !he welding 

Page 39 Page -II 

REGE:"'CY-BRENTANO, INC. 

! ! (Pages 38to 41) 
•• 

• ' 

non llod~;e In lle: Uhertj· Fmmda!i' !13 

! 

\. '-\un: 

J Y~:.-. i 2 

l Q. So th-e lir'it tim!!.' pm lHI\ e ;,;e-~n this 3 

' 1IMumcnt. OJ:fli~ .. itlnn £\blbit 12. io, ju!ot a mom~:nt :t';itO. ' 5 .I. \ '-'S 5 

6 Q. \\hat is ~1mr understanding of tile subject 6 

7 matt-er that ~nu iU'e ~oing to t~stify about in this 7 

8 ease if )'OU are called as a\\ itflfls'! 8 

9 ·\. ·n1~ dctcnninalion of\\hdher or n~n a 9 

lO major or minor a!t~ratiunor r.:pair •~as made un these ' 10 

II fuel tanks, i II 

u Q. Ollu~r lhau t.·ou,·usations ~bout that !12 

13 ~ubject that you mi~ht b:nc had"" itb :\lr. SttHn.son, \ 13 

J.4 '"'hi~h 1 am not asking~ ou about~ \'1. hich l am not asking ! 14 

15 you to talk ~bout, okay. han~ you had di'"t\l'ii~ion~ "ith 1 t 5 

16 an-yone else in th<' FAA about that subjcet matter? jt6 

17 A. Yes. ; 17 

IR Q. With whom. please? 18 

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A. All ufmy coll~agues and airworthiness 

sp..:cialist!> al th~ 230 branch. 

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Q. 

A. 

C31.n you gh-·e me their names, please? 

Martha Ste,~art. Martha Farmer. excuse m-:. 

David, I can't retnt!mber D:ave':o. last name. And myself. 

. 21 

22 

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Q. So just two people. 

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A. i 25 Just two p~ople. 

Page 14[ 

Q. And what did you discuss with Martha --1~ w1'ote Martha Stewart down. [ 2 

,;\. :\iartha F:1rrner. I beg your pardon. 3 

Q. Wbat did }'OU discuss with Ms. Farmer'! I .I 

MR. STEVENSON; Just a moment. 5 

I am going to o~iect to that question (}0 ! 6 

the bash thal Lh~ conversation bet\-ve-cn FAA \! 7 

employees is rrcqucntly covered by the d<:r:iskmal 8 

process prh ikge. Unless you want me to speak I 9 

with :O..ir. Dndg~e ubout whc:ther or not thnt would be I' 10 

"iolntcd. I om going ro instruct him not to . 11 

ans'-'t:r on [he ba.iis ofthlll-p!'iVi!i!g<:. ju 

MR. GOI DSTEI'N: I don't thin\.: )--0u ton make i l3 

that insttuLti(lrt at this point whhm!t km1wing at 1 14 

l<!llSt the !Jii!nt:r . .t.l subjett mattc:-r of\\h:.J.t tht:!y ! 15 

talked about. i 16 

:ViR. SrEVENSON: Y~:1h. But i1 is a · '17 

pri\ i!egl!. I am nm ~uin~ ·~ i r.:;.tn't hear his 18 

19 

,·cmnq 

1f~·tw 

i-

>:t\\~o.'l.'n L\., ~"·'". {t: t~} 

lind ,out \\h,lt !hi\~e .:ui1\\.'J'<:,;~till!h ',\o;:re- '""'-· Jr f 

-.:un prohibit him from i.iliS'-\crlng. 

\IR. GOLDSTEI\l; Lt:t m.: say this. I think 

that antes:; 1 ,l.'{k him an "'pinion que:sti1m, ,,-hut 

,,pinilln Jid Ms. Farmer hJ' e. wh;.tt npinion did 

David have. it b not prh-ikgt:d. F urthmnort!. 

lhe L-\A in response to int.;rrogatorks in this 

.:o.se has ::llread~ jescribcd conver~ati<.lns 

betnt!t:-n u- at le-ast ill this .:a.-;e or the Schneider 

.:asc .... between insp..:ctors. 

~IR. STEVE7'SON: I :lt11 not osscrting that 

~\-Cry conH·rsatiort bt"tween FAA employees is. 

privileg~!d or else 1 would u. I mean. if I did. 

it \\ould be no relevance to me asking Mr. Dodge 

what it \\·a~ ahout. But I would have to look at 

those particular conversations to know whether or 

not a privilegt: shOuld hti\1;! bt!t!n applied; and if 

th!! FAA·· if for whatever reason the prior r AA 

counsel who represented \:hose to or inadvertently 

wah-ed pri\ ilt:ge with regards to one I,;'Onversation 

that do~sn't mean that it waives privilege with 

regards to all conversations. 

Page16 

~IR. GOLDSTEIN: Why don't JOU take ale" 

minutes and talk to him and, you knO\\'. it rna) be 

that we will have to go to tht!: judge and have 

Mr. Dodge come back. Bu\ if wt: go lo the Judge 

and the judge sides with me, tam not coming back 

hert!. You aU are going to haYe to present 

Mr. Dodge in Miami. 

MR. S'I'!;Vt::NSON; I Jon't know what the 

contents are. 

{Rece-:iS froml2:37 run. to 12:39 p.m.) 

MR. STEVENSON: !left the room and spoke 

to Inspector Dodge, lt is nola matter of 

privilege to go ahead and an:mer th~ Que:-otion you 

u.;k~d • .'\s )'IJU indicated thl!re could be fol!O\'-I·Up 

4uc~tiun;; you might ask \dv:rc I mighl hcwe lo 

invoke it :.1g~in. if you stuJi a~ king uhmn 

opini(111" tlut w~re tll'fert!d. But Lhe: gener:.ll 

:;ubj~r.:t m~tw:r ~,r \\h<Jt \\as. Uis~usst.?d is fine:, 

Q. (lly ~lr. Goldstein) !Jo you have the 

20 

uns\\ cr ;J.nd thcn Jccid..: \Yhcthcr or not t .. l im okc 

the pdvil .. >g~. 20 question in mind, sir? 

21 

22 

23 

24 

25 

~ .. Ht. GCJU1STFIN: Y1)ll ..:ould ll\U\t:: t~l striL: 

It :utl!r. 

\1R. STEVE:.; SON: \[is J prh ih:ge :1nd 

he.;;nL9: it is :111 j,~ue q[f1t'iYik~~ ifllc1 him 

anS\\ l'r, th~n th~t b a ..:at thut I gencrully 

!'age 15 

: 2l :\. ':-.o. 

l3 

2.1 

{ rhe record '~us t'l..'nd b~· t!w n:pt1rt~r,} 

!'HE WIToiESS: Tho ,·omoval ofrhe blaJJ•r 

tank ,u;d the \Yelding ot'lhe J.]uminum .md the 

~hell. 

Page 17 

REGENCY -BRENTANO, INC 

5 (Pages 14 to 17) 
U.S. DEPARTMENT OF TRA:"'SPORTATION 

m·FICE Of HEARI:'-!GS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRA T!ON. 

Complainant. 

vs. 

Docket No. FAA-2012-0477 

FAA Case No. 2011Gl030070 

LIBERTY FOUNDATION. 

Respondent. Judge Sullivan 

AFFIDAVIT OF DONALD DODGE 

STATE OF GEORGIA 

COUNTY OF FULTON 

HAVING COME before the undersigned Notary duly authorized to administer oaths, Donald 

Victor Dodge, did state under oath after being properly sworn. that the following statement is 

true and accurate: 

I. l am over the age of 18 and I understand the obligations of an oath. 

2. I am currently employed with the Federal Aviation Administration as a Regional 

Specialist (Maintenance) at the Southern Regi<>nal OC!ice in College Park. Georgia. 

3. I have 16 years' experience at the Federal Aviation Administration,lirst serving as an 

Aviation Safety lnspecwr (Airworthiness) then later as a Regi<>nal Specialist. 

4. I have more than 37 years' experience as an aviation mechanic. having held a Mechanic 

Certificate with Airframe and Powerplant Ratings since 1976. an Inspection Authorization sine~ 

1979. I have also held a pilot certilicate since l 972. From I Q7(] through I '!97 l worked at, 

owned, and operated Dodge Aircraft. a fixed-base operator per!ormin~ general aviation 

maintenance and alteration services, inducting regular 1\ork on vintage and classic aircrall. 

5. l am familiar with the facts of this case. concerning the work performed on N390TH's 

lud system in late 2010 through early 2011. culminating in a February 24, 2011, return to 

servitoe. and also concerning the June IJ, 2011. t1telleak in one ofN39UTH's new tucl tanks. 

The material [have reviewed includes the ueposition of the mechanic who perfonned the work 

in question. photographs uf th10 winter 20 l 0-11 work in progress. photographs aml video of the 

~--""-!! 
.I une 20 I I fuel kuk. appl il:ahk portions "r the maintenance rcc:urds ti>r N}90 HI. applicahlc 

portions of the B-17G structural repair handbook. maintenance and erection hand hook. and parts 

I bt. and c12rt i fie at inn and rt.:gtstnll ion in formation fur \1390 rl f 

6. I am l~uniliar with the Federal Aviation Regulations anJ policy documents issued hy the 

Administrator wnceming repairs. alterations. major repair;. major alterations. and I\ hat sorts of 

work on aircrati fall into which category. 

7. lhe aircrali invol\'cd in this case is a Boeing B-17(1. serial number .\4-S573~. registered 

as civil aircraft N390TH. 

R. N390Tll was built with fuel tanks consisting of six thick. sdt~sealing bladuer fuel tanks. 

three in each wing. Each bladder tile! tank""' installed in an aluminum shell that surrounded the 

bladder tanks and was attached to the interior of the wing by straps. All attachments between the 

tile! tanks and the rest of the fuel system were tlxed directly into the bladder fuel tanks. In order 

to accommodate the straps and various attachments and tittings, numerous holes were present in 

the aluminum shells. Additionally. one end of the aluminum shdls was removable, so it could he 

taken on or off the bladder fi1d lank. 

9. In general terms. the work on the fuel system ofN390TI-I that culminated in the February 

24. 20 II, return to service consisted of removing the bladder fuel tanks entirely. fabricating a 

filler neck attach point. a fud boost pump att~ch point on four of the six fuel tanks. a fuel 

quantity transducer mounting point, fuel system line attachments and plates to seal the fonner 

fuel bladder mounting points. welding those attachments and plates onto the aluminum shelL 

welding shut the removable end of the shell. and connecting each of the six shells into the 

existing fuel system as tile! tanks. 

10. Although some B-17 aircratl were manufactured with solid metallic tanks. N 390TH was 

not. Further. no B- 17 was manufactured with a solid metallic tank consisting of an aluminum 

shell with holes that had been plugged by welding a variety of tabricated attaclm1ents and plates 

to the shell, or a manufactured with a removable end that was then welded closed. 

11. This work was an alteration. not a repair. hecau~c it changed the design of the aircraft and 

its components. and was not simply a restoration of the aircraft to an undamag~d state. 

1::!. The alt~rutiun was a majur alteratinn. ,\s smred in section t .I ,,f the ~·cdcral "\viarion 

R~gulations (lldinitions): 

\tajor alteration meuns an alteration not listed in th<: airc.:ratt. air~rah ~;;nginc. pr 

propeller spccilic;,tions--

i I J fhat might apprecrubly u!Tcct weight. halancc. ·;tructuml strength. 

pcrtimnancc. rowerpbnt operation. tli[!ht charactcrisllcs. or <1thcr qualities 

affecting airwonhincss; or 
! 21 That is not done <\ccording to a~ct;ptcd pr:tcti..::es \)f ..:annut b~ dnn~ hy 

elementary operations. 

13. Th~re are several reasons why the aH~ration was a major alteration. Within tour months 

of the alteration. the welding cracked in one of the new tanks. resulting in a fud leak. This was 

an appreciable effect on a quality affecting the airworthiness of the aircraft. Thus. the alteration 

was a major alteration. 

14. Additionally. even setting aside the fuel leak. the removal of the bladder fud tank could 

have had an appreciable effect on the airvvorthiness of the aircraft and its fuel system. The 

alteration increased the tuel capacity of the aircraft, affecting weight and balance and possible 

stresses placed on the wing structure. The new aluminum !lie! tanks were susceptible to 

vibrational stresses in ways that a bladder fuel tank was not. An aluminum fud tank would not 

respond the same way to the stresses of the in-tlight motion of thousands of pounds of aviation 

fuel as a semi-rigid bladder tank would - hat11es should have been incorporated into any hardshell fuel tank design for tanks of these sizes. The newly fabricated fixtures and attachments may 

or may not have been of equal quality with the components they were replacing. The fabricated 

fixtures and attachments. even assuming that they were of equal quality to the parts they were 

replacing, had changed from being attached to the semi-rigid bladder tank to being attached to 

the rigid a!tuninum tank, which could impact how they responded to stress during !light. All of 

these problems are exacerbated because the aluminum tanks were not simply solid, formed 

aluminum tanks, but had been extensively welded. introducing numerous potential weaknesses 

into the system- as can be seen by the cracking that developed in one of the fuel tanks in less 

than four months, the weld seams an: a source of structural weakness and can make the tank 

more susceptible to issues with vibration and stress. Welding can also increase the possibility of 

corrosion. The weaknesses that can be introduced by welding are highlighted by the B-17G 

Structural Repair Handbook's prohibition on welding aluminum structural members while the 

fuel tank is not a structmal component. and welding u fuel tank is permissible under appropriate 

circumstances, the same potential w~aknesses in the resulting compllnent are still present and 

must be accounted for. 

I 5. Also, any alteration of a fuel tank is a major alteration. FAA Order 8900.1 provides 

extensive guidan<:e to Aviation Satety Inspectors in the performance of their duties. One of the 

possibk duties of an ASI is tield approvals of major alterations. Accordingly, one of the job aids 

in the 8900. J is a list of major alterations, and whether the required approval can be a lield 

approval. must be an engineering approval, or requires a Suppkmental Type Certillcate. On the 

list of major alterations is any change in a permanent fuel t3nk. or installation of a new tile! tank. 

17. ~uiiher.lh<! labricatitm of new tile! tanks out of the aluminum shells was a major 

alteration becaus~ labricating components and welding are not an elementary clperation. 

18. I am aware of the provision in Appendix A of Part 43 tlfthc Federal Aviation Regulations 

that lists changes in the basic design of a tuel system tL' an example of a major alteration. The 

replacement of the bladder fud tanks with titbricated aluminum tud tanks \\as a change in the 

basic design of the fuel system. While someone could mechanically list dozens of components 

that were not r~placed in replacing the fuel tanks. this does not mean that the replacement of the 
fuel tanks was not a change in the hasic design of the fuel svstem. l·ud tanks. and their ahility to 

perform prnperly. are absolutdv vital to the sale functioning of a fuel system and aircrali not 

the least hccausc a fuel leak can have disamous c<Jnscquences l(tr an aircraft. Tk impnr1ilt1C<.! ,,f 

the fuel tanks to the fud system can he seen in guidance prov idcd hy the ,\dmintstratcw to rAA 

inspectors in the X1JOO I. where all alteratictns to fuel tanks are classi!ied as major alterations. 

18. i\ddittonally. based on my e~perience as a mechanic and an fAA employee. it is 111)' 

opinion that fabricating a fud tank out of an aluminum shell by welding ,m attachments and 

metal plates to close openings is not an accepted practice. as that tenn is used in the FAR I .I 

dctinitions of major alterati<>n and major repair. 

19. Each of the reasons Jcscribed above. standing alone. would render the alteration a major 

alteration. 

20. The work performed that culminated in the February 24, 201 I, return to service was an 

alteration, not a repair. However. if it was a repair. it would he a major repair. As stated in 

section I.! of the Federal Aviation Regulations (l)elinitions): 

Major repair means a repair: 

( 1) That. if improperly done, might appreciably affect weight. balance. structural 

strength. performance. powerplant operation, tlight characteristics. or other 

qualities affecting airworthiness: or 

(2) That is not done according to accepted practices or cannot be done by 

elementary operations. 

21. The distinction betwet:n a major repair and minor repair largely tracks the distinction 

between a ml)jor and minnr alteration. As such, all but one of the reasons discussed above as to 

why the alteration was a major alteration are also reasons why this would be a major repair. if it 

had been a repair. 

22. The one exception is regarding the example in Appendix A ahout how a change in the 

basic design of the fuel system is a major alteration. This examrlc is not applicable to repairs. 

Howev~r. Appendix A also provides that each and every repair of a ntel tank is a maj~>r repair. 

~] Fach of the reas,ms J<.lentiti~d abme, standing alon~. would rend~r the wot'k a major 

repair. if it was a repair. 

24. The alteration ofN}'!tiTH is not described in any maintenance m:mual or instructions for 

continued airworthiness t(w the• B-17(;. 

15. !'he mctho<b. tedmiques. and practices used hy Respondent in alterin!' the aircrati are not 

ac<:cptablc to the .'\dministratPr. Respondent's alteration intmduced numerous potential- ,mJ 

actual ·weaknesses into the am:rali, :md Jtd not mclude the sort ofinspections necessarv to 

verify that the new fu<i t:mk' "ere capahk ul· ~>ithstandin~ the stresses lll' llight. 
26. The alteration of ~YlOTH was not done in such a way as to restore the condition of the 

aircrati to en kast its originalur properlv altered cunditi<m with respect to resistance to v ihration 

and tkterioration and other ~ualitics affecting airwnrthincss. :\II nfthc t:Ktors mentioned in 

paragraph 14 are pertinent here. The extensive weld in~ on the new fud tank,; made them 

vulnerable to the stresses tlf !light in ways that the original tanh were not. and this resulted in 

the rapid failure of one of the tanks. 

27. N3YOTH was unairworthy because it did not conform to its tvpe cetiilicate or type 

design. The aircraft did not conform to its type certificate or typ~ design because the B-l7G's 

design never contemplated taking an alum mum shdl '"ith numerous holes in it. fabricating 

components and welding them onto that shdl. and then using it as a fud tank. 'l390TH's 

specification sheet. which is now the type ccrtiticate for the aircraft. requires that for repairs or 

modifications not listed in the aircraft's maintenance manuals. the repair or modification must 

t1rst be presented to Civil Aeronautics Administration (now the Federal Aviation 

Administration). 

28. The aircratl did not confonn to its type certificate or type design because it had not been 

restored to its original or properly altered condition. The aircraft did not confonn to its type 

certificate or type design because the alteration perfom1ed was not an approved or acceptable 

fonn of alteration. The aircrati did not conform to its type ccrtiticate or type design because :VIr. 

Schneider did not have the Inspection Authorization required to return the aircraft to service after 

a major alteration. The aircraft did not conform to its type certificate or type design because no 

FAA Fonn 337 was executed for the major alteration. The aircraft did not conform to its type 

certificate or type design because no approved technical data was used in performing the 

alteration. 

29. Each of the above reasons. standing alone. meant that N390TH was unairworthy because 

it did not conform to its type certificate or type design. 

30. The aircraft was unairworthy atler the February 2-1. ~Oil, alteration because it was not in 

a condition for saf~ operation. Improper tucl tanks present numerous hazards to an aircraftmost notably. leaking fuel can result in loss of engine power and is also a severe fire hazard. As 

described by Mr. Schneider in his deposition. the tuelleak that occurred in June 2011 was a 

direct result of the february ~4. 20 II alteration of the aircraft. For the reasons described above. 

welding can introduce numerous \Vcaknesses intt1 an aluminum compom:nt. and the safety of 

such a htJavily welded fuel tank was alwa,·s ~uestionable. That th<: \Widing faikd so quickly 

demonstrates that the pmcntial weaknesses had, in tj\Ot, been introduced. It is my opinion that. 

because ofrhe improper alteration, 'l390HI was nt>t in a condition li1r safe operation after the 

installation of the aluminum fuel tanks. 

31. r have reviewed th~ maintenance rewrds f(lf N3911 I'll pertaining to the February 2+. 

2011. alteration. No fAA hmn 337 was completed for this work . 

.J2. l have reviewed \-!r. Schneider's dcscripti,•n of the maintenance work perfonned on the 

Jun~ 20I r fuel leak. The mainrcnnnce perttwmcd \':a~ nol ClH1taincJ in the aircratf mainknam;c 
. ' 

manuaL The maintcnanc~ performed was n1)t contained in any instructions t{lr continued 

airworthiness ti1r the arrcrali. rhe maintenance perfun11cd was not nthcm1sc acceptabk to the 

Administrator. 

33. The June }I) 11 maintenance nn the lilhric;ltd lttd tanks was not othef\vise acceptable to 

the Administmtor due to the nature of the c,1mponent being repaired. I he fud tank was an 

unapproved pan that should never have been installed on the aircraft. There were no methods, 

techni4ues, or practices acceptable to the Administrator for repairing the fuel tanks hecause the 

fuel tanks themselves were unucceptahlc. 

34. In addition, even if the nature 0fthe fttel tanks was set asid\0, the repair would not have 

been performted using methods, techniques, or practices acceptable to the i\uministrator. As 1\.tr. 

Schneider indicates in his deposition, the work could have been done in a kss risk) manner, but 

he chose to opt for a quick fix in order to meet a schedule rather than the safe. proper repair. The 

fuel tanks should have been removed liwn the aircraft fi.1r th<: repair. but were not Sealant should 

have been applied from the inside, but was instead applied from the outside of the tankapplying the sealant to the inside of the tank .ensures that the pressure of the fuel in the tank 

serves to push the sealant into any cracks. rather than push the sealant out. Mr. Schneider 

perfonned only a limited visual inspection on the repair through the boost pump access door, but 

the inspection should have been more extensive (for example, the fuel system should have been 

pressurized and the boost pumps should have been activated). 

35. In addition to the unairworthiness caused by the February 24. 201 I, alteration, N390TII 

was unairworthy when it operated on June 13, 2011, because of the improper maintenance 

perfonned by ~r. Schneiuer. Not only was the repair improperly performed. it was also a repair 

that was not listed in the maintenance manual and was therefore not permitted under the 

aircraft's type certitlcatc. Further, it was a major repair and Mr. Schneider did not hold the 

Inspection Authorization required to return the aircraft to service at\cr the repair. and no FAA 

l'orm 337 was executed. 

Further am am sayeth naught. 

I hereby swear or affirm that the above is accurate and true to the best uf my knowledge. 

a:. 

Swom and subscribed bdorc me this /3 _day of August. 2013. 

rYfy Comrnis~iort Expires: